P. v. Aguilera

Filed 2/15/07  P. v. Aguilera CA5

NOTTO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court,rule 977(a), prohibits courts and parties from citing or relying on opinionsnot certified for publication or ordered published, except as specified by rule977(b).  This opinion has not been certified for publication or orderedpublished for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

            APPEAL from a judgment of the Superior Court of Tulare County.  GeraldF. Sevier, Judge.

            Lynette Gladd Moore, under appointment by theCourt of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson,Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General,Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiffand Respondent.

-ooOoo-

            A jury convicted appellant Andres Aguilera of attempted voluntary manslaughter (Pen.Code, §§ 664, 192, subd. (a)),^[1] asa lesser included offense to attemptedmurder (§§ 664, 187; count 1), and found true allegations that duringthe commission of the crime he personallyused a deadly and dangerous weapon and personally inflicted great bodily injury(§§ 12022, subd. (b), 12022.7, subd. (a)).  The jury also convicted Aguilera of(1) assault with adeadly weapon, a knife (§ 245, subd. (a)(1)), and found true that in thecommission of that offense he personally inflicted great bodily injury (§12022.7, subd. (a); count 2), and (2) resisting a peace officer (§ 148, subd.(a)(1); count 3).  Aguilera was sentenced to a 7-year prison term as follows:the three-year midterm for attempted voluntary manslaughter, plus one year forthe use of a deadly and dangerous weapon enhancement and three years for theinfliction of great bodily injury enhancement.  The court also sentencedAguilera to the mid-term of three years for assault with a deadly weapon plusthree years for the infliction of great bodily injury enhancement, to be servedconcurrently with his sentence on count one.  The court did not impose anadditional term for resisting a peace officer. 

            On appeal, Aguilera contends (1) his convictionfor assault with a deadly weapon with the enhancement for personal inflictionof great bodily injury should be reversed because it was a lesser offensenecessarily included in attempted voluntary manslaughter where the latter hadenhancements for personal infliction of great bodily injury and personal use ofa deadly weapon; (2) the concurrent sentences for attempted voluntarymanslaughter and assault with a deadly weapon violate section 654; and (3) substantialevidence does not support his conviction for resisting arrest.  As we shall explain,we agree the concurrent sentences violate section 654, but reject Aguilera'sother contentions.  Accordingly, we will remand for the trial court to correctthe sentence but otherwise will affirm the judgment.

FACTS

            Sometime before 6:40 a.m. on July 30, 2005,Felipe Aguilera went outside his parents' house to get a shirt off aclothesline.  His brother, Aguilera, came up behind him and when Felipe turnedaround, Aguilera said something to the effect that he was going to stab him. Thinking nothing of this, Felipe turned to get the shirt off the line andAguilera stabbed him on the left side.  The two fought, with Felipe trying totake Aguilera's knife away.  During the fight, Aguilera said he was going tokill Felipe.  Felipe managed to get the knife and throw it aside.  WhenAguilera began to overpower him, Felipe called for his brothers to help.  Twobrothers, Jose and Ramon, came outside.  Ramon grabbed the knife.  Aguilerapulled out a second knife, stabbed Felipe two more times, and fled.  Aguilera'ssister called 911. 

            Dinuba Police Officers Thadius Ashford and JasonKent responded to the call.  They found Felipe in the front yard staggering inpain and bleeding from several stab wounds.  Felipe told the officers Aguilerahad stabbed him and described him as wearing white pants with blood on them,black shoes, and no shirt.  After an ambulance took Felipe to the hospital fortreatment, the officers interviewed the witnesses and checked the area. Felipe's injuries included a punctured lung, which required surgery. 

            Thirty minutes later, Officer Kent saw Aguilera,who was shirtless and wearing white, bloodstained pants, about a block and ahalf to two blocks away from the scene of the stabbing.  Aguilera was walkingwith a female toward Officer Kent's patrol car.  Officer Kent saw him walkthrough an open fence located in an alley.  As Officer Kent got out of his patrolcar, he saw Aguilera walk southbound through the backyard of a residence. Officer Kent ordered him to stop and radioed his sighting to other officers. Officer Ashford, who responded to the call in his patrol car, saw Officer Kentsaying something to someone over a fence.  Officer Kent pointed to OfficerAshford to go south towards an area south of the yard Aguilera was walkingthrough. 

            When Officer Ashford arrived where Officer Kentwas pointing, he saw Aguilera walking from the backyard toward him and thesidewalk.  Officer Ashford called him by name and told him to stop.  Aguileralooked at Officer Ashford, then started to run in the opposite direction justas Officer Nunez was driving up.  Aguilera, who had run a short distance (maybefive or six feet), stopped when he saw Officer Nunez and turned around towardsOfficer Ashford, who was pointing his Taser at Aguilera and telling him to geton the ground.  Officer Kent, who had followed Aguilera through the backyard,saw him standing in the residence's front yard, drew his firearm and alsoordered him to lie on the ground.  Aguilera, who had no place to go because theofficers had surrounded him, â€